Legislative and Regulatory Reform Bill - Standing Committee A

[Sir Nicholas Winterton in the Chair]

Legislative and Regulatory Reform Bill

Clause 22 - Functions to which sections 19 and 20 apply

Question proposed [this day], That the clause stand part of the Bill.

Question again proposed.

Nicholas Winterton: The Minister advises me that just prior to the adjournment at 10.25 am, he was in the process of sitting down at the end of his remarks.

Christopher Chope: On a point of order, Sir Nicholas.

Nicholas Winterton: On what I have said?

Christopher Chope: On what you have reported, Sir Nicholas. The Minister had not sat down, and I had asked him in an intervention to return this afternoon with details on why the provisions of part 2 of the Bill did not apply to Her Majesty’s Revenue and Customs. I understood that he had given an undertaking that he would come back and respond to that question.

Nicholas Winterton: I am not sure that that is entirely a point of order, but it is certainly a point. The Minister will no doubt have heard it, and if wishes to rise to his feet to respond, I shall most certainly call him. He is not rising, but the debate can continue, so if the hon. Gentleman is now seeking to catch my eye to contribute to it, I am more than happy to call him.

Christopher Chope: I had thought that it would not be necessary for me to contribute further. This is an important debate about the scope of part 2 of the Bill. It is accepted that the work of Her Majesty’s Revenue and Customs has a major impact on small business and businesses generally in this country and falls squarely within the definition of regulatory function in clause 23. However the Minister has told us that, for some reason that I am trying to get to the bottom of, HMRC will not be subject to the important provisions of part 2. I have asked why on several occasions, and I ask again in the hope that it will encourage him to get to his feet rather than play for the 4 o’clock end. I hope that he will also be able to respond to points that were made about other bodies that could be covered by these provisions, but perhaps will not be.

Andrew Love: I clearly heard from the Minister that this part of the Bill was based on the recommendations of the Hampton review, and that annexe B of that review did not  include the organisations that the hon. Gentleman has mentioned. That might not be acceptable to him, but it has been explained on two occasions in Committee.

Christopher Chope: The hon. Gentleman tries to come to the Minister’s defence, but unfortunately if he looks at the long title of the Bill and at its scope, he will see that there is no reference to the Hampton review. The Bill will facilitate deregulation and reduce burdens on business—that is to take it at its face value and is how the Government have been promoting it.
The Hampton review refers to HMRC, and I am pointing out that that body has a major impact on businesses through its regulatory function and that it should surely be subject to the same regime, set out in part 2, as other regulators and bodies exercising regulatory functions within the meaning set out in clause 23. HMRC is clearly within the scope of the Bill; part 2 does not say “some regulators.”

Oliver Heald: Does my hon. Friend agree that small business organisations such as the Forum of Private Business are particularly concerned about the administrative burdens that are the result of tax? It would be a pity if the tax authorities did not have to comply with such obvious points as acting in
“a way which is transparent, accountable, proportionate and consistent”
and targeting
“cases in which action is needed”.
That is what we would like them to do.

Christopher Chope: My hon. Friend is absolutely right. Does he share my frustration that the Minister’s stonewalling threatens to thwart what was quite a constructive discussion on part 2? We thought that we had got some common ground with the Government, on the basis that we are all in favour of deregulation and reducing the administrative and regulatory burden on business.

Andrew Love: As the chairman of the all-party small business group, I am not aware that the Forum of Private Business has the policy proposal that the hon. Member for Christchurch (Mr. Chope) suggests. Is he speaking on behalf of those on the Conservative Front Bench? Is it their position that we should include Her Majesty’s Customs and Revenue in the Bill?

Christopher Chope: I certainly hope that it will be, but I do not speak from the Front Bench. That is why I am as far back as I can get without going through the wall.
I have every confidence in my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), and I am sure that when we come to Government, he will want to ensure a level playing field for all regulators, including Her Majesty’s Revenue and Customs. We might make it one of the most important elements of our manifesto to seek fair play with regard to HMRC, whereas the present Government do not seem to want to. I hope that we will provoke a response from the Minister, and an explanation and justification for the exclusion of HMRC from the proposals. It was not included in detail in the  Hampton review, because the Chancellor of the Exchequer, who set up the Hampton review, did not want to include it—surprise, surprise.
That does not address the substantive point, however. The Government are saying with the Bill, “The burden on business is too great. We are on the side of business and we want to help business.” A letter from the deputy director-general of the CBI appeared in one of the newspapers recently in which he says that the Bill is a great Bill but would be much better if it extended part 2 to organisations such as HMRC.
While the Minister prepares to respond to that point, I also ask him whether it is proposed that clause 22 should apply to the Standards Board for England. He might have seen during our break today, as I did, a report on page 6 of today’s Evening Standard that said that a watchdog, namely the Standards Board for England, caused the leader of an Islington local authority and four of his colleagues to be
“subjected to the longest-ever probe”.
They were left with a legal bill for £350,000, and the total costs of the proceedings topped £1.1 million. The Standards Board has apologised now, but it does not have any proposals for compensating those individuals who were on the wrong end of maladministration and abuse of regulatory power. I should like the Minister to assure us that the Government intend to include the Standards Board in the provisions and ensure that it must comply with the regulatory regime like other regulatory bodies.

David Heath: I do not want to repeat the arguments already made by the hon. Member for Christchurch, but the more I think about it, the more I think that we need some sort of list of regulators that the Government intend to include. I agree with him about the Standards Board, which some of us feel should be abolished in any case. Setting that aside, however, his is a well made point. The direct application of regulatory functions by Ministers happens in various Committees, and it is instructive that the Treasury is most resistant to any overview from outside of its functions. The question arises, for instance, of whether the new equalities commission will be a regulator under this Bill. I do not know what the answer to that is, but perhaps the Minister can tell us.
My conclusion is that although the Minister has been at pains to suggest that having considered the difficulty of providing a schedule of inclusion, he has effectively gone for a schedule of exclusion either specifically under clause 22 or by implication under earlier parts of the Bill. Nevertheless, we will have to have some sort of idea of which bodies, set up under statute or otherwise, are considered to have regulatory functions that are relevant to the Bill.

Nicholas Winterton: I invite the Minister to reply.

Jim Murphy: I accept your kind invitation, Sir Nicholas, and welcome you again to your position as co-Chairman for our deliberations in our final sitting of this Committee.
I was under the impression that we had brought our deliberations on this clause to a conclusion, but I am happy to respond to some of the specific points that have been raised. The hon. Member for Christchurch referred to a report in the Evening Standard. I am more of a Glasgow Evening Times man myself. I do not regularly read the Evening Standard, so I cannot comment on the specifics of the report. I am sure that it is of high quality. I have no idea whether the hon. Gentleman quoted from the story; he did not share that fact with us. We do not envisage that the regulatory function would apply to the Standards Board.
There will be an opportunity for Ministers to extend the sense of “regulatory functions” after consultation under clause 22(2). Although the Government have no intention to do so, the enabling power would be there. The hon. Gentleman also asked about the list in clause 22(5). I know that that was not his main point, but I think he mentioned a list. I can do no more—I do not think he would wish me to—than repeat verbatim the answer I gave earlier. Those bodies were outside the scope of the Hampton review, and their operation is an area of market security and sensitivity. It would not be appropriate for the clause to apply to them. As for the question of whether we should have a list of regulators, and whether it is better to have a list of regulators or regulatory functions, we will come to that discussion in our debate on clause 23, which is about regulatory functions.
I remind the Committee, as I said earlier, that there has been an attempt to define “regulator” rather than “regulatory function”. It has proven extraordinarily difficult to do that in any legal sense. We spoke about that this morning. An attempt to define “regulator” and to draw in all sorts of people would not be appropriate. The British Medical Association and MI5 were mentioned—MI5 cannot in any sense be considered a regulator—but it was difficult to draw a definition of a regulator.

David Heath: That was a difficulty that we also encountered when we were dealing with the Freedom of Information Act 2000, when discussing what constituted a public body. It was extremely difficult to identify what constituted a public body and, in the end, there was a capacity to list public bodies, or organisations and individuals who were to be treated as public bodies, and the capacity to amend that list by subsequent order. There is an analogy in this case.

Jim Murphy: I accept the hon. Gentleman’s argument because of his previous experience. As I say, we will discuss that in clause 23 and he will have the opportunity to tease out that point a little more.

Christopher Chope: The Minister still has not addressed the issue about Her Majesty’s Revenue and Customs, and I hope that he will before he finally sits down.

Jim Murphy: I was going to turn to hon. Gentleman’s point, which is a reasonable one, in my next sentence. He is right to say that, this morning, we had quite a productive debate, and the tone of the debate has been very constructive.
In relation to the Bill, Her Majesty’s Revenue and Customs is considered to be a tax authority, rather than a regulator. That is the explanation, even if it is not one that people like. The hon. Gentleman is also right that the Hampton report referred to HMRC, but as far as I am aware it referred to the HMRC only as being outside of its scope, rather than within its responsibility or aegis.

Christopher Chope: The Minister says that he is defining HMRC as a tax authority, but does he accept that it carries out regulatory functions within the definition in clause 23, and that therefore it could and should be covered by the Bill?

Jim Murphy: The hon. Gentleman makes a bid for the Bill to be extended to HMRC, and he is entitled to do so. To reassure both him and the Chancellor, I am not seeking to redefine, as part of our discussions on clause 22, the purpose or the aim of HMRC. We view the Customs as a tax authority rather than a regulator. That does not deal with one of his specific points, but that is the definition that we are using for the Bill, including for regulatory functions under clause 23.
We shall discuss the point further when we reach clause 23. I do not know, Sir Nicholas, whether you are encouraging us to have a stand part debate on clauses 22 and 23 but I shall be happy to address this further during the debate on clause 23, if the hon. Gentleman so wishes.

Question put and agreed to.

Clause 22 ordered to stand part of the Bill.

Clause 23 - “Regulatory functions”

Question proposed, That the clause stand part of the Bill.

Christopher Chope: Following the Minister’s invitation to continue, in relation to clause 23, the debate that we were having on clause 22, does he agree that the functions described in clause 23 are very wide ranging, and that that is a big advantage? However, it is disappointing for the Government to indicate that when it is embarrassing to include the regulatory functions defined in clause 23 for some Departments in the scope of the requirements of clause 19 and in the code of practice in clause 20, they will not play ball.
Obviously, HMRC raises tax—that may be its primary responsibility—but it also exercises regulatory functions, because within the meaning of subsection (1), it imposes “requirements, restrictions or conditions” in relation to activities. Does the Minister concede that HMRC has regulatory functions within the scope of clause 23, and can he explain why, notwithstanding that, it will not be subject to the same regime of common-sense reduction in the burden of regulation as other regulators?

Andrew Love: Using the criteria that the hon. Gentleman has just outlined, will he say why he has focused on HMRC? Surely the point applies to a considerable number of Departments. Why does he not include those in relation to the Bill?

Christopher Chope: Because I know that we have to finish our deliberations by 4 pm and I thought that it would be better to give a representative example, rather than going through an exhaustive list. To answer the hon. Gentleman’s point directly, if he looks at annexe B of the Hampton report, he will see that paragraph 20 contains a list of what it describes as “Notable UK Regulators”. First on that list is none other than the HMRC. I concede that the Standards Board is not on the list—it certainly is not so high up, anyway—but the HMRC is right at the top, which is why I have tended to dwell on that organisation.

Jim Murphy: I do not want to make a habit of intervening on the hon. Gentleman, but he referred to page 84 of the Hampton report and said that there was a list of notable UK regulators, the first of which was HMRC. It would have been helpful to the Committee had he given the full title on that page, which is
“Notable UK Regulators out of scope”.
He did not provide the Committee with that fact.

Christopher Chope: Of course those regulators are out of scope: the Chancellor of the Exchequer said that they must be. That is the only reason for their being out of scope. The intervention from the hon. Member for Edmonton (Mr. Love) was about why I picked on HMRC as an important regulator. The Hampton report considers it to be a notable UK regulator but, as the Minister has said, the Chancellor said that the Hampton report could not consider the regulatory functions of the HMRC. That is why it has not been included and is out of scope.
Interestingly, there is a justification in annexe A as to why Ofgem, the Office of Rail Regulation, Ofwat, the Civil Aviation Authority and so on are excluded: they are “economic regulators”. The Minister has referred to that. However, no justification is contained or recorded in the Hampton report as to why the HMRC is excluded. That seems to be a supreme example of Treasury double standards: “Let’s set a regime for everyone else but not for our own home team.”
As the Minister does not come from the Treasury, I hoped that he would be more upbeat and say that he hopes that, in so far as the HMRC has regulatory functions that impact on the administrative and other burdens on business, it will be happy to comply with the spirit and the letter of the code of practice that will be drawn up under part 2 of the Bill. Repetition will make no difference, but I hope that he will be able to exercise some flexibility and respond to the challenge that if the HMRC exercises regulatory functions, it should be subject to the same controls as other regulators.

Oliver Heald: I want to consider my hon. Friend’s point about the HMRC being a major regulator and a body that is potentially covered by part 2. It is well  known that small businesses in particular feel very burdened by the requirements of the HMRC. Earlier this week, I spoke to representatives of the Forum of Private Business, who said that they had just completed a survey of small business about the tax burden and that there was a great groundswell of concern about the administrative burdens imposed on small business. I am sure that the hon. Member for Edmonton will look forward to seeing the report when it is published.
I hope that when the Minister considers his list of who is to be included and who is not, he will not just go for the easy targets and will consider dealing with all these various bodies that are now “Of” something or other—Ofgas, Ofwat and the rest of them. It would be wrong to let off the “Ofs”. We need to have a system where the main regulators in this country set the standard, trailblazing for good principles of the sort set out in clause 19—transparency, accountability, proportionate behaviour, consistency—and targeting their actions. They should not be the ones who lag behind. It is a point that I have made before, but I hope that the Minister will at least consider it.

Jim Murphy: I will respond briefly. I congratulate the hon. Gentleman on using the same joke in two consecutive sittings of our Committee. I do not know why he chose to do it, although I could hazard a guess.

Oliver Heald: It is a different Chairman.

Jim Murphy: It is a different Chairman, Sir Nicholas. That is the purpose of it.
I simply remind the hon. Gentleman of the point that I made when he made a similar remark. Those regulators listed in clause 22(5) were not within the scope of the Hampton review because their work is different in nature and scope from the general business regulators that Hampton dealt with. Secondly, they operate in areas of market security and sensitivity and it is important to avoid the uncertainty that that may create.

David Heath: I wonder whether the suspicion that a regulator may be acting in a non-transparent, unaccountable, disproportionate or inconsistent way might affect the markets in any way as well.

Jim Murphy: What we are setting out is that regulators, with the exceptions that are a statutory responsibility, must adhere to the principles within clause 19 and any code of practice in clause 20, which we will consult on. It is certainly my understanding that the regulators listed in clause 22(5) will have a challenge instead of regulatory functions, but also parameters within which they must operate in respect of how they interact with business and others. It may be helpful before Report to examine the specific areas in which those five operators function as a matter of information for the hon. Member for Somerton and Frome (Mr. Heath). If he wishes we can discuss that, so that he can analyse the way in which they operate and their sensitivity to the better regulation agenda, which I know he cares about.
I absolutely agree with the hon. Member for North-East Hertfordshire about small businesses. He made a reasonable and important point about the need to lighten the load of bureaucratic burdens on them. Some important steps have been taken in that regard in recent times, but we need to go much further. Without wishing to stray on to other clauses, he rightly supports the fact that one of the aims of the Bill is to remove unnecessary bureaucracy, outdated regulations and unnecessary burdens.
On the point about the HMRC, obviously the definitions in the clause are designed to be broad enough to capture the wide-ranging functions carried out by those regulators covered by the Hampton review. Their purpose is to enact the findings of the Hampton review. That is an additional reason why the Bill does not cover the HMRC, which is top of the list on page 84 in annexe B of notable UK regulators that are out of scope of the review. The HMRC has its own ambitious better regulation agenda, which my right hon. Friend the Chancellor published in an action plan at the time of the last Budget. That action plan, which is a publicly available document, sets out how the HMRC carries out the better regulation agenda in a way that matches its responsibilities. I hope that that reassures hon. Members, but of course they can draw on that specific document if they seek additional information on the way in which the HMRC is regulated in that respect.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24 - References to Community instruments

Question proposed, That the clause stand part of the Bill.

Oliver Heald: We are on to a different area—changes to the way in which legislation from the Europe Union is dealt with in this place.
Clause 24, if one reads the notes, is a provision that when a Community instrument—a directive or regulation—is mentioned in a Bill, it should not be necessary to recite all the various amendments that have been made to it over the years. That is thought to be a straightforward improvement to the way in which legislation is drafted. However, I am worried about the wording. If the EU makes a directive or a regulation and then we in the UK pass a Bill, in which the EU legislation is referred to, to give it effect, but then the instrument is changed, the courts in this country would be forced, by that change, to treat the new instrument as though it were the one referred to in the Bill. In other words, are we creating an automatic change to our law every time the EU changes its provisions? That seems to go beyond the description in the notes.
I should be grateful if the Minister would confirm that the situation is as described in the notes, and that there will be no automatic change in the law in this country, every time the Community changes its law, without reference back to the House.

David Heath: I concur entirely with the point made by the hon. Member for North-East Hertfordshire—it is important that we understand the context.
As we move to this part of the Bill, may I have permission, Sir Nicholas, to ask the Minister a more general question? Clearly, there is an interrelationship between the changes that the Minister is introducing, in terms of the way in which European legislation is translated into British—I should say English—law, and the way in which the House scrutinises those matters in order to ensure that Parliament has proper control over what is enacted, either directly or indirectly.
We have been waiting a long time to hear substantial plans from the Leader of the House for improved European scrutiny. We are told constantly that they will arise soon, but “soon” never actually arrives. Will the Minister tell us what discussions his Department has had with the Leader of the House, because those two things are clearly linked? The legislative process cannot be treated in isolation from the process of European scrutiny, or vice versa. I hope that the Minister will confirm that there is joined-up government in that area and that there has been debate between the two, and I hope that he can give us an indication of whether any conclusions have been reached that ought to be brought before the House at the appropriate moment.

Nicholas Winterton: Before I call the next speaker, I think that the last point made by the hon. Gentleman is slightly wide of this legislation. Although I am happy for the Minister to make a passing reference to it, I hope that his response will not take too long.

Christopher Chope: I hope that when the Minister responds to our introductory debate on part 3, he will enlighten us about where we stand in relation to what has been described as a period of reflection following the rejection in a referendum by two member states of the European constitution. We are in the extraordinary position that the European Union Bill, which had its First Reading on 24 May 2005, has not been withdrawn.

Nicholas Winterton: Order. I always enjoy the hon. Gentleman’s contributions. If he refers only briefly—very briefly—to the matter, I shall allow him to continue, but he is rather wide of the subject.

Christopher Chope: I will be very brief. The point is that the provisions of clause 24 are almost identical to provisions in the European Union Bill. The long title of that Bill is:
“To make provision in connection with the Treaty signed at Rome on 29th October 2004 establishing a Constitution for Europe; and to require a referendum to be held about it.”
Those matters are no longer part of the Government’s agenda. Notwithstanding that, provisions in the European Union Bill are to be found in part 3 of the Bill before us.
As I understand it, the purpose of the equivalent provisions in the European Union Bill was to streamline the way in which European legislation was brought before the House—in light of the confirmation of the treaty. As the treaty has not been confirmed, and as we are still in a period of reflection—it continues under the present Austrian presidency and expires at the end of it—can the Minister explain why we seem to be jumping the gun? Part 3 is legislating for purposes that, in May 2005, were expressly being made to facilitate the implementation of the European constitution. The constitution is not being implemented, so why is it still necessary to include those provisions in this Bill?

Jim Murphy: I will try to stay in order.

Andrew Love: Can the Minister tell us when the referendum will be? It is the only question that he has not yet been asked.

Nicholas Winterton: Order. The hon. Member for Christchurch ultimately and accurately clarified that the point he was making was closely associated with the Bill. I call Mr. Murphy.

Jim Murphy: Thank you, Sir Nicholas—and I congratulate the hon. Member for Christchurch on being able to do so.
I shall try to remain in order as I respond to the points raised. The hon. Member for Somerton and Frome asked earlier how we scrutinise EU legislation. All I can say is that I sat on European Standing Committee A, European Standing Committee B and European Standing Committee C for more than two years. On average, those Committees met once a week. They were pretty lonely gatherings—none the less enjoyable, of course.
The hon. Gentleman asked how the scrutiny of EU business could be enhanced. It is important that all who consider themselves to have a positive view of our relationship with Europe should grapple with that question. We need to heighten the level of interest in the scrutiny of European legislation through those Committees and their successors. That is something that should be dealt with across parties. I am not acting as a politician today, Sir Nicholas, nor should I be under your stricture to answer the point. The hon. Gentleman says that all parties are seeking more effective ways to scrutinise and to engage in the European debate and how it interrelates with Parliament.
The other points made about the provisions of clause 24 do not relate to the constitutional treaty. The hon. Member for Christchurch was right to say that in paragraph 8, the explanatory notes say that the provisions were and would remain included in the European Union Bill that would have provided for a referendum on the EU constitutional treaty. Notwithstanding the fact that that Bill has been  postponed until a date yet to be determined, the new clause will enable us more effectively to implement technically the provisions already made in Europe.
I shall give an example of that. I shall not bore the Committee; we have only until 4 pm, so I will not read out all of this one statutory instrument. However, the Producer Responsibility Obligations (Packaging Waste) Regulations 2005 define the waste directive as
“Council Directive 75/442/EEC on waste as amended by—”
and then lists a series of directives. The clause seeks to ensure that we do not have to go through that ineffective way of technically implementing decisions agreed in Europe. That way is cumbersome, but that is not the most important thing.

David Howarth: I believe that the Minister is answering the question put to him by two hon. Members about whether the new clause would effect changes to Community instruments that took place after the Act in question came into force. As there will be, I hope, a long period of reflection after Committee and before Report, I suggest to the Minister that he and his officials try to clarify the clause slightly by inserting something like, “at the time of the passing of that Act” after the word “has” in the second line. That would make it absolutely clear that what was being considered was what had happened before that Act came into being and had nothing whatever to do with what might happen after that point.

Jim Murphy: The hon. Gentleman makes a sensible suggestion in a sensible way, and I shall reflect with officials on whether that would be a necessary and effective thing to do. A second clause 24 would not automatically change our law every time that a Community instrument was updated. That is not the effect of the clause. I shall reflect on the hon. Gentleman’s point, because of his experience and the way that he made it.
As I mentioned to the hon. Member for North-East Hertfordshire, the amendments are extraordinarily complicated and technical. They are about how we implement decisions that have already been taken. They do not in any way affect, influence or take a view of those decisions, but simply implement them in a more coherent way.
There is already one explanatory memorandum, but it may be helpful to offer an additional technical one, not only for Committee members but for other Members of the House who may not have paid close attention to some of the details of part 3. In that way, before Report, hon. Members on both sides of the House—those on this Committee and those who have not had the good fortune to be invited to serve on it—will be able to make their own observations about the technical aspects of clause 3. That would certainly be worth doing.
I shall bring my comments to a conclusion. Clause 24 will not make any changes to policies made in Europe and will not change what can be legislated for in Europe. It will not lead to more regulation from Europe; it simply provides that a reference in UK legislation to a Community instrument such as an EC  directive or regulation will have effect as a reference to that instrument, as amended, at the date on which the UK legislation is passed. I hope that that reassures hon. Members, who have asked entirely reasonable questions.

Question put and agreed to.

Clause 24 ordered to stand part of the Bill.

Nicholas Winterton: Perhaps it would be appropriate for me to remind Committee members that our proceedings have to come to an end at 4 o’clock. I hope that that fact will be borne in mind, because we still have a number of other clauses, amendments and new clauses to deal with.

Clause 25 - EEA agreement and EEA state

Question proposed, That the clause stand part of the Bill.

Oliver Heald: I only have a brief point to make. At the end of the clause there is a provision relating to Scotland and Acts of the Scottish Parliament. I want to check whether that has been discussed with the Scottish Parliament and it is content.

David Heath: I want to make a rather pedantic point, unfortunately, which is also rather complicated, about whether the European economic area agreement, or any modifications to it, are Community treaties. We know that the EEA agreement was entered into by member states of the European Union, the European Coal and Steel Community and the European Free Trade Association, but unlike sovereign states there is no legal persona that is the European Union. Had the referendum gone ahead and the constitution been proceeded with, the EU would be a legal personality; but it is not. Therefore, we have an agreement of member states.
Under the provision, with which I have no basic quarrel other than this technically that I am looking into, there is a definition of the EEA agreement:
“the European Economic Area signed at Oporto on 2nd May 1992, together with the Protocol adjusting that Agreement signed at Brussels—
fair enough—
“as from time to time modified or supplemented by or under the Community Treaties.”
The difficulty is that amendments to that are not Community treaties per se, in that they are entered into by the European Union as such, because it cannot do so—only member states can do that—and amendments to the EEA are, by definition in British law, not defined as Community treaties under section 1(2) of the European Communities Act 1972. How do I know that? I have in my hand the European Communities (Definition of Treaties) (Agreement on Enlargement of the European Economic Area) Order 2004, which was necessary to allow the participation of the Czech Republic and the republics of Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland,  Slovenia and the Slovak Republic within the EEA at a time when they were not member states of the European Union.
The second provision of the 2004 order is:
“The treaty specified in the Schedule to this Order is to be regarded as a Community Treaty.”
In other words, it was not, but the order put to Parliament was to allow it to be regarded as such. That is a rather technical point, but there is a circular definition of Community treaties that is perhaps to be avoided. I do not expect the Minister to give me a chapter-and-verse response without notice, but I ask him to consider the matter and ensure that he is satisfied that the legal definitions are in order and we do not have a circular argument about what comprises a Community treaty. I think that the Minister gets the point that I am trying to make and may, indeed, have an answer.

Jim Murphy: To the extent that the hon. Gentleman gets the point, I think that I also get it, but it is, as he says, a complicated and potentially circular argument. The only information that I can offer him—his research may have made him aware of this—is that section 1 of the European Economic Area Act 1993 made the EEA agreement a Community treaty for the purposes of the European Communities Act 1972. I shall analyse the hon. Gentleman’s additional comments.

David Heath: The principal point is that the EEA agreement was made into a Community treaty by virtue of the 1993 Act, but subsequent changes to it are not, unless there is another bit of primary legislation or an Order in Council that enables them to be.

Jim Murphy: The whole Committee accepts the point that the hon. Gentleman has made. The clause amends the Interpretation Act 1978 to provide that references in domestic legislation to the “EEA agreement” will automatically refer to the current version of that agreement. There is no need to have a prolonged discussion on the clause unless hon. Members wish to do so.
The hon. Member for North-East Hertfordshire made the point about the devolution settlement. My understanding is that the Scottish Executive are content with the approach in clause 25 and how it affects the devolution settlement. As a Scot, I am continuously sensitive to ensuring that our deliberations respect the devolution settlement.
As has been said, the EEA agreement was signed in 1992 and was adjusted by the protocol signed in Brussels on 17 March 1993. References to the “EEA state” and “EEA agreement” are made thousands of times in primary and secondary legislation. Although changes to membership, and therefore to the agreement, do not happen often, when they do, updating thousands of references is an extraordinarily time-consuming and resource-intensive effort. The clause seeks to ensure that such a process is no longer necessary and that we refer to the EEA in its current  form. We should not need to replace all those thousands of different references. Given those comments, I move that clause 25 stands part of the Bill.

Question put and agreed to.

Clause 25 ordered to stand part of the Bill.

Clause 26 - Power to make orders, rules and schemes

Question proposed, That the clause stand part of the Bill.

Oliver Heald: Clause 26 adds to the ways in which the law in the European Union can be brought into English law under section 2 of the European Communities Act 1972. Currently, that has to be done by regulations, but the clause would add orders, rules and schemes to that provision.
What sort of changes does the Minister envisage being made by “orders, rules and schemes”—those are the words that will be added—rather than by regulations? Will he explain what orders, rules and schemes are in this context? What procedures would be used to introduce them? Can he give examples of a particular change that would be best made by an order, rule or scheme? In other words, what is this all about?
The 1972 Act refers to regulations. The Minister now wants to add these other categories, and we should probe him as to what he has in mind. Subsection (5) gives Ministers powers to change Acts or subordinate legislation to include references to orders, rules and schemes. Did such things exist at the time that such Acts were made? In other words, to what extent is this provision retrospective as regards orders, rules and schemes? For example, if we wanted to change Acts that were introduced in 1995, 1996 or 1997, were orders, schemes and rules in place at the time? Are such terms known specifically under the English law?

Jim Murphy: Sir Nicholas, what is it about? I have already offered to supply an explanatory memorandum. Obviously, all members of the Committee have followed every detail of the specific clauses under part 3, but those hon. Members who have not had the benefit of serving on the Committee might not have so acquainted themselves.
As for rules, regulations, orders and schemes, paragraph 1500 in volume 6 of “Halsbury’s Laws of England” states that the
“contents of rules, regulations and orders are, in fact, often indistinguishable in nature”.
If that were the case under English law, to put it flippantly it is mostly the case in some aspects of European law. I reassure the hon. Gentleman that the provision will not affect policy made in Europe or what can be legislated for in Europe. It will not lead to more regulation from Europe but, when we have already agreed to European legislation, clause 26 will help to streamline the process of transposing those EC obligations into United Kingdom legislation.
I shall illustrate matters further to inform and enlighten the Committee. As a general rule, it is possible for statutory instruments of the same type—two orders or two sets of regulations—that are subject to the same parliamentary procedure, both affirmative resolution for example, to be combined into a single instrument to avoid having to make two separate statutory instruments. Section 2(2) of the European Communities Act 1972 provides a power to implement European Community obligations into UK law by statutory instrument.
When a Minister is exercising the power to implement Community obligations, he can in general currently do so only by making regulations, not other types of secondary legislation. Regulations made under the power of section 2(2) of the 1972 Act can be combined into a single instrument with regulations made under the power in another Act, but cannot be combined with another type of statutory instrument such as orders, rules or schemes. Instead, two separate instruments would have to be made even if they were intended to create a single, seamless regulatory framework governing one particular area.
If the clause were not in place, the people being regulated would need to refer to both instruments. It is much more convenient and accessible to include all the provisions that made up a single regime or cover a particular area in one instrument in such a manner. The clause addresses the problem. It provides that the power under section 2(2) of the European Communities Act can be exercised by a Minister making orders, rules or schemes as well as regulations. The clause sets out the procedure.

Christopher Chope: A provision under clause 3 of the European Union Bill of the current session ensured that, when such an instrument was coming forward, the Minister would have to make a statement about whether it complied with the principle of subsidiarity. Can the hon. Gentleman assure us that that will still remain the Government’s policy and that such powers will not be used unless they are accompanied by a principle of subsidiarity compliance statement, which is not referred to under this Bill?

Jim Murphy: I sense that I am testing the Committee’s patience by going into the technical details, but I can confirm the hon. Gentleman’s point. I hope that I have reassured him. The clause is another example of a sensible tidy up of the way in which decisions made in Europe are implemented into UK law.

Oliver Heald: I am grateful to the Minister. Now that he has explained his view of the meaning of regulations, rules and orders, we are on familiar territory.
However, what about the schemes? Anyone who hears the expression “schemes”—[Interruption.]—is automatically a little worried and possibly wants to frustrate them, as the hon. Member for Somerton and Frome said. I am aware of only one reference under the law to schemes. The Fisheries Act 1981 brought in a scheme that was not popular universally. However, it  was described under that Act as a scheme. Is that the only one of which he is aware, or is it a term that is used more widely than in the Fisheries Act?

Jim Murphy: By way of information for the hon. Gentleman, schemes normally prescribe overall plans for the attainment of objectives described in general terms. I accept that that is very technical, and I know that the hon. Gentleman accepts that. Rules usually deal more with procedural matters, such as the procedures of a court of tribunal. Volume 6, paragraph 1500 of “Halsbury’s Laws of England”says:
“the contents of rules, regulations and orders are, in fact, often indistinguishable in nature.”

Oliver Heald: I think “Halsbury” is totally wrong about that. In 1932, the report of the Committee on Ministers’ powers—the Donoughmore Committee—made it clear that regulations, rules and orders have distinct meanings. The report said that they
“should not be used indiscriminately ... The expression ‘regulation’ should be used to describe an instrument by which the power to make substantive law is exercised, and the expression ‘rule’ to describe the instrument by which the power to make law about procedure is exercised. The expression ‘order’ should be used to describe the instrument of the exercise of (A) executive power or (B) the power to take judicial and quasi-judicial decisions.”
So it seems to me that “Halsbury” is actually being rather sloppy.

Jim Murphy: I am not in a position to assess whether “Halsbury” was being sloppy, I am simply here to inform the Committee about the specifics in the clause. As I understand it, any power in an Act to make secondary legislation will specify the type of instrument that can be made, and there is not a completely clear distinction between the different types of instrument, as I said earlier about the distinction between schemes and rules.
I do not wish to pass judgment on “Halsbury” or anyone else, including the hon. Gentleman, whose legal background we have already heard about in some detail. I have offered to provide the Committee with an additional explanatory memorandum dealing with some of the specifics that everyone acknowledges are detailed and complicated. It may also be helpful to place copies in the Libraries of both Houses.

David Heath: Sir Nicholas, I suppose it is excessively pedantic to ask why the spelling of byelaw has changed in last couple of years, and why we now have an extraneous “e” in it which never used to be there.

Nicholas Winterton: I am sure that the Minister will wish to respond to that highly relevant and important matter.

Jim Murphy: The hon. Gentleman is right—it is an extremely pedantic point.

Question put and agreed to.
Clause 26 ordered to stand part of the Bill.

Clause 27 - Power to make ambulatory references to Community instruments

Jim Murphy: I beg to move amendment No. 56, in clause 27, page 15, line 24, after ‘instrument’ insert:
‘or any provision of a Community instrument’.

Nicholas Winterton: With this it will be convenient to discuss Government amendments Nos. 57 to 60.
I give notice that I shall seek the Committee’s permission to put amendments Nos. 57 to 60 together, and I hope that the Committee will give me that permission if it will speed up proceedings.

Jim Murphy: Forgive me for not following the detail of your strictures, Sir Nicholas; do you wish me to move all the amendments simultaneously?

Nicholas Winterton: The Minister can move Government amendment No. 56 and speak to the other amendments as well.

Jim Murphy: Thank you; that is very helpful.

Oliver Heald: It seems to me that the amendments are just drafting improvements. Does the Minister agree?

Nicholas Winterton: I am sure that the Minister is just about to say that.

Jim Murphy: The first sentence of my notes says:
“Sir Nicholas, these are drafting amendments.”
In making that helpful point, the hon. Gentleman has unexpectedly delayed the Committee for 15 seconds or so. However, we have time; we have another two hours.
These are technical drafting amendments that are aimed at improving a technical clause to make it more precise. I could, if hon. Members wish—[Hon. Members: “No.”] I could, if hon. Members wish, sit down and make no further comment; or I could of course go through every amendment in great detail. I sense that the Committee, which has been in a good mood all day, is in the mood for me not to speak to the amendments in great detail. I do so formally, therefore, on the basis that they are drafting amendments to make the provisions in the clause more precise.

Nicholas Winterton: I have to carry out my duties strictly in accordance with the appropriate procedure. I therefore put the question.

Amendment agreed to.

Amendments made: No. 57, in clause 27, page 15, line 26, leave out
‘(whether or not for that purpose)’.
No. 58, in clause 27, page 15, line 27, leave out ‘the Community instrument’ and insert
‘that instrument or that provision’.
No. 59, in clause 27, page 15, line 33, after ‘made’ insert
‘after the coming into force of this paragraph’.
No. 60, in clause 27, page 15, line 34, at end insert
‘passed or made before or after the coming into force of this paragraph’.—[Mr. Murphy.]

Clause 27, as amended, ordered to stand part of the Bill.
Clauses 28 to 30 ordered to stand part of the Bill.

Clause 31 - Commencement

Question proposed, That the clause stand part of the Bill.

Nicholas Winterton: With this it will be convenient to discuss the following:
New clause 6—Expiry—
‘Part 1 of this Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force.’.

Oliver Heald: New clause 6 fulfils a promise that I made in my speech on Second Reading, when I said that I should propose a sunset clause for the order-making part—part 1—of the Bill. Many hon. Members in Committee agree that we make inadequate use of post-legislative scrutiny in this country. In circumstances where a Minister puts forward a Bill and there is considerable controversy about it, it may be appropriate to introduce a period after which post-legislative scrutiny should take place.
We in Parliament are getting better at considering Bills in advance, and I am a strong supporter of pre-legislative scrutiny. To be fair to the Government, they have published more than 40 bills in draft form, many of which have been considered by Committees in advance. A sunset clause is for the other end: the consideration of matters afterwards. The Minister knows that great concern is developing about part 1, particularly because there are no adequate safeguards for such a wide, general order-making power.
The latest of many submissions that I have seen from people and organisations that are worried about the Bill comes from the Maranatha community. It says that the Bill has been presented as a low-key, tidying-up measure, but in any other European country a proposal with such far-reaching effects would require an amendment to the constitution. It goes on to say that the Bill as proposed threatens to undermine what remains of parliamentary democracy, and that it could be used to endanger the liberty or freedom of speech of any individual, group or organisation. The Maranatha community submits that the Bill should not continue in its present form.
Members of a gentle Christian community have put forward that view because they are worried that some future Minister—not this particular Minister—might have the power to affect the protections available to individuals or ethnic or religious groups. They do not want that sort of change to be made unless the traditional full procedures of the House and all the protections that those involve are available to them as individuals and to us as parliamentarians.
As we have discussed, the background to the Bill is that the Government consulted on a deregulatory Bill with non-controversial changes. The Bill that has followed that consultation does not meet the terms on which the consultation was taken. What we have now is the wide, fast-track power to amend, repeal or introduce primary or secondary legislation by order for any purpose. The Bill does not refer to using the power for deregulation. Indeed, clause 12(2) openly contemplates the use of the fast-track power to increase costs to business or to cause disbenefits, and requires the Minister to assess them in a statement to be filed with the draft order. That is not what business expected. As John Cridland of the CBI commented recently, the intended outcome should be
“to deliver more and swifter deregulatory measures for the benefit of business and society”.
The Bill is controversial because that wide order-making power is not being given for a clear or well-defined purpose such as deregulation. It is being given for any purpose. That must be changed.
Clause 4 gives that fast-track power not just to a Minister but to any person. I assumed that that proposed mechanism was designed to build on the suggestion in the Hampton review that regulators’ regulation-making powers should be merged, a suggestion which I support. However, when I suggested that the Bill should say that, the Minister replied, “The Bill doesn’t say that partly because our ambitions are wider than that.” What are those wider ambitions?
The Bill needs three kinds of safeguard, and I have tabled amendments on three things. First, purpose: it should only be possible for the fast track to be used to deregulate or make non-controversial simplifications or pass Law Commission Bills. Secondly, reserved matters: it should not be possible to use the fast track for constitutional, important or controversial changes. Those should be reserved for our usual procedures. Thirdly, procedural veto: there should be a procedure whereby a Committee or the Houses of Parliament can simply veto use of the fast track for inappropriate measures.
Until the Bill is amended to provide safeguards, it is unlikely to be passed. During Committee debate, the Minister has promised to make changes, but so far we have not seen those amendments, although a meeting has been arranged. He has welcomed the Select Committee report suggesting changes, but it is worth noting that many of my amendments—there have been dozens of them—have been based on the Select Committee’s findings and have followed its wording almost exactly, and those amendments have not found favour with him. Unless proper protections are put in place, the Bill will have profound implications for democracy and will be a move towards government by ministerial fiat.
We have bent over backwards in Committee to provide the Minister with opportunities to put things right. It is not just me; the Liberal Democrats have tabled amendments on the same themes, and all parties on the Opposition Benches have supported them.
There is a need for a Bill to help with deregulation, and the Government’s own consultation showed support for the sort of Bill for which we are arguing. But concern is growing on both sides of the business world, with business organisations pressing for the necessary safeguards and not wishing to lose a Bill that could help with deregulation, and the TUC expressing concern that the Bill should not be too widely drawn in case another Government with a different political perspective were to remove valuable protections that it holds dear.
I am not saying that a sunset clause is my preferred option. I would prefer to see amendments of the sort that I have tabled being accepted by the Minister. Maybe he will want to redraft them, but I want those safeguards in the Bill. As a last resort, if we go ahead and have a Bill, it must be limited in time so that we can reflect on whether the order-making powers have created the sort of problems that many think they will create, myself included.

Nicholas Winterton: Definitely, yes.

Oliver Heald: I even hear the Chairman saying, “Definitely, yes.”

Nicholas Winterton: That was a slightly different question.

Oliver Heald: I realise that you would be unable to comment, Sir Nicholas.
A sunset clause is a last-ditch attempt to put at least some protection or roadblock in place. The real answer would be for the Minister to come back on Report with the strong safeguards that everybody wants.

David Howarth: I agree with everything that the hon. Member for North-East Hertfordshire said. I am glad that he is following the threefold exposition of the types of protection that we are looking for that I proposed in my speech on the programme motion, which now seems a very long time ago. He is correct that concern about the Bill is growing. The Government have staunchly resisted any suggestion that the purposes for which the Bill can be used should be restricted in any way. They have also resisted any suggestion that its subject-matter should be restricted. The only matter on which they have given way is the possibility of procedural protections, and the only protection that they favour, or at least are willing to examine, is not as great as it should be because the Government hold a majority in the Committees of the House.
The alternative method of procedural protection that I put forward, whereby a certain number of Members of the House could block the use of the Bill, has not been accepted. It seems that we are in the last ditch in our attempt to insert a sunset clause, although I should like to make a couple of comments when we come to clause 33 on the short title of the Bill.
The hon. Member for North-East Hertfordshire made a good point. We need to ask the Government, “Why do you want these powers, and why do you want  them for so long?” The Minister has given a number of reasons that refer to quite short-term problems. He referred constantly to firefighters’ pensions and to the Hampton review. Why do the Government want to hold such wide-ranging powers beyond the time that they would need to bring in the sort of changes to the regulatory regime that they propose? The sunset clause would give the Government those powers but only for a limited time.
The Committee should realise that the sunset clause has a defect: the limit applies to the power to make the orders, but not to the orders made under it. If orders were passed that were inappropriate or highly controversial—or even subversive of the constitution—they would still be valid even once the powers of the Bill to make such orders had lapsed under the sunset clause. Nevertheless, it would be worth withdrawing that power after a limited time—in other words, it would give the Government five years to subvert the constitution, and if they had not done it by then the power to do so would cease.
I am worried that the Government want to be able to exercise those powers for such a long period. My feeling is that they want them not for specific purposes but just in case something crops up for which they need a wider power. However, the wider ambitions are not specified at this point. Opposition Members sometimes wonder whether the Government have some specific wider ambitions but are not telling us about them. I am coming to the view that that is not so—that they do not know what their wider ambitions are, and that they are asking for those powers just in case they need them, or want them. In addition, the Cabinet Office does not get all that many opportunities to bring Bills before the House, and it does not know what sort of problems it will be required to address in future. Just in case, it has brought us a Bill that is drafted as broadly as possible.
I offer my support and that of my hon. Friend the Member for Somerton and Frome for the sunset clause in the knowledge that it is not a perfect solution. It is the last ditch, and I hope that the Government take the opportunity at least to offer some hope to those of us who feel that the Bill is dangerous.

Christopher Chope: I, too, support new clause 6. The Bill is part of a pattern. Sir Nicholas, you were in the Chamber during business questions today and heard the Leader of the House tell me that proposals are circulating in Government that are designed to restrict the power of Members to ask ordinary written questions. The Leader of the House admitted as much today. Why are the Government seeking to rein back on the power of Members of the House to legislate, ask questions and try to hold the Executive to account? We are debating the Bill in a very unhealthy atmosphere.

Oliver Heald: The hon. Member for Cambridge (David Howarth) was quite charitable about what the Government’s aims might be. Does my hon. Friend share my concern that at the end of his period of tenure, the Prime Minister will become frustrated with  all the fuss and bother of Parliament—a place for which he has not had much respect—and that this is his last throw of the dice? He wants to get rid of all this fuss and nonsense—

Nicholas Winterton: Order. Will the hon. Gentleman address the Chair, as my age has made me slightly hard of hearing?

Oliver Heald: Yes, Sir Nicholas.
The Prime Minister wants to get rid of the fuss and nonsense that gets in the way of the Napoleonic vision of the “great leader”.

Christopher Chope: One could almost sum up the attitude of the Prime Minister as follows: it is unfortunate that Members of Parliament, and particularly Labour Members, are a legal necessity. He would like to do away with all that. My hon. Friend is too charitable in saying that it is simply frustration on the part of the Prime Minister. I suspect that he finds the whole process too burdensome and that he would like to spend more time with his family—or less time in the House, answering for the Government’s failures.

Oliver Heald: Does my hon. Friend agree that the Prime Minister often says that every time he has made a change he always wished that he had gone further? Under the Bill, he will be able to go as far as he can see and then go further still using the order-making power of the Bill to build on that platform. If the Education Bill is slightly damaged by the rebels, when it comes to the crunch once it is in statute, he could just use one of those orders to get in all the rest of it.

Nicholas Winterton: I have allowed that intervention, but I do not think that we should pursue that line of argument.

Christopher Chope: New clause 6 would introduce a sunset after five years. I wonder whether that might still be during the course of this Parliament if the powers in the Bill are used. It has the power to extend Parliament beyond five years. That may be for the convenience of the Prime Minister.
New clause 6 is generous, because it offers five years. If the Bill goes through in anything like its present form—I am sure that it will encounter much difficulty during its remaining stages in this House and the other place—I hope that he will be able to persuade the incoming Conservative Government that, in a period of much less than five years, part 1 of the Bill should be scrapped in toto. I hope that it will be an early undertaking for the Leader of the Opposition in his quest for power.

David Heath: Setting aside the hon. Gentleman’s optimistic view of the chances of the Conservative party forming another Administration, will he accept—this is not a party political point—that no Government of any hue shall dispense lightly with those extraordinary powers? That is precisely our problem. Any Government would be tempted to keep rules that allow them to do almost what they want with their parliamentary majority without the threat of parliamentary scrutiny.

Christopher Chope: The hon. Gentleman is absolutely right. I shall explain why I concede his point. When I was first on Wandsworth council, in 1977, we as an opposition so provoked the incumbent Labour majority that it brought in a guillotine. It introduced the guillotine just before the May 1978 elections, and ever since, that guillotine has been used very effectively by the Conservative majority on the council. That is what happens. That is why it is essential that with powers as great as those in the Bill, we should have a clear and collective undertaking from the Opposition parties that they intend to repeal the legislation within—I hope—five years.

Jim Murphy: I have enjoyed listening to some of the debate and conjecture from Opposition Members. To some extent, it was a rerun of parts of the debate that we had in our part 1 deliberations. I shall seek not to rehearse all aspects of part 1, because we had that debate at length for four sittings. You will keep me in order if I wander from the debate, Sir Nicholas.
Clause 31 sets out when the provisions of this legislation come into effect, which is at the end of the period of two months beginning the day on which the Bill is enacted. Technically, that means two months after Royal Assent. That follows the general rule that Acts should not come into force until two months after they have been passed.
New clause 6, moved by the hon. Member for North-East Hertfordshire, draws on the suggestion that we should have a sunset clause. Hon. Members on both sides will not be surprised to hear that I am firmly against the idea of sunsetting part 1. To set an arbitrary date for the expiry of part 1 would, for the reasons that I am about to give, be wholly inappropriate.
I spoke at our first sitting about the need to change the culture across Whitehall in terms of the better regulation agenda, the need to build a momentum, and the need for an enormous amount of work, energy and effort, to alter the way in which Whitehall and others approach better regulation. Having a sunset clause for part 1 of the Bill would greatly undermine our ability to do that and create uncertainty about the longevity of part 1.

Mark Harper: There is an alternative way in which the Minister could look at the situation. If civil servants knew that the Bill was only going to be enforced for five years, it could be looked upon as a spur to get them to introduce deregulatory matters more speedily, knowing that that opportunity would end after five years. It could act as a spur to efficiency.

Jim Murphy: That would be a fair point if the better regulation agenda was temporary and only lasted five years. Our intention of course is to ensure that we deliver on simplification, better regulation—

Mark Harper: For ever.

Jim Murphy: Well, last week we joked about the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) and a Ming dynasty, which I think lasted for 276 years.
The point made by the hon. Gentleman would be fair, if our ambition and determination to deliver on better regulation had a time limit. We want to deliver a change in culture and in the way in which Whitehall regulates, and to maintain a momentum. Our assessment is that a sunset clause would affect our ability to deliver that change in culture, to get the investment and prioritisation across Whitehall, to invest resources, time and energy, and to engage senior people with the agenda. A sunset clause would create uncertainty in our ability to deliver and would stall our momentum.
Of course, our intention immediately after this legislation is enacted will be to start to deliver on the Government’s simplification plans. We expect that as we implement the first set of plans that come out of Departments, we will challenge those Departments to come up with additional plans to remove unnecessary bureaucracy, outdated regulations and unnecessary burdens.

Mark Harper: Taking that point further, what the Minister seems to be saying is that the Bill will create a perpetual motion machine in which, on one hand, half of the Government and civil service will be busy creating complicated Bills that are difficult to understand and that will impose burdens, and on the other hand there will be a diligent Minister with a team of civil servants creating orders to sweep away the complexity created by the other part of Government. If he can implement a culture change, surely the Government’s legislative measures will be more simple and straight forward, and less burdensome in the first place, so the necessity, once the step change has been made, for powers to sweep away that complexity will end.

Jim Murphy: In addition to the simplification plans, when the Government introduce a new proposal, we will seek to identify offsetting measures. That will be part of the culture change within Government.

Oliver Heald: But only a month or so a go, the Department of Trade and Industry set out its list of new proposed regulations. The list ran to 40 pages. Why was there not a similar list of measures that were going to be scrapped?

Jim Murphy: The DTI has published its simplification plan. I think that it is a publicly available document, but I will undertake to send the hon. Gentleman a copy of the DTI’s simplification plan in which it identified ways in which they could introduce offsetting measures, simplify legislation and reduce unnecessary bureaucracy and burdens.

Oliver Heald: I think that the Minister might have misunderstood my point. The DTI publishes a list of all Government regulations proposed for the two dates that there are for regulations to be made. This year, that list runs to 30 pages—it is not just for the DTI. I  welcome any plans, of the sort that he described, that the DTI might have, but the question that I ask is this: why does not the DTI or the Cabinet Office publish a list of what will be scrapped at the same time so that one in, one out works?

Jim Murphy: It might be helpful to explain to the hon. Gentleman what is happening. I come to the point mentioned by the hon. Member for Forest of Dean (Mr. Harper). Instead of one Minister at the centre of Government coming up with better proposals for regulation and simplification, every Department is now being challenged. With the creation of the panel for regulatory accountability, chaired by the Prime Minister, every Department must pursue simplification plans. Not just one Minister in one Department but every Department is doing that work.
Many of the documents respecting those specific proposals are already publicly available, and that must be welcomed. I am not aware that it has happened before. I do not seek to make a party political point; that is just part of the wider agenda of implementing simplification. It is welcomed by business, and Departments seem to be taking up the process enthusiastically. The Bill will enable the delivery of many of those simplification proposals and plans.
It might help the hon. Member for North-East Hertfordshire if I provided him with the Department of Trade and Industry plan, as he referred to the DTI in particular. I shall ensure that the publicly available DTI simplification plan is sent to him, so that he is aware of the specifics.
I strongly believe that having a sunset clause of the nature advocated by the hon. Member for North-East Hertfordshire would undermine our ability to drive the better regulation agenda throughout Government in a determined way. I am happy to make an undertaking that, as with the 2001 Act, a Minister of the Crown will report to the House no less than five years after enactment on the operation of the proposed Legislative and Regulatory Reform Act. A similar undertaking was given after the 2001 Act was passed, which led in part to the review of the Act and discussions about its effectiveness.
The hon. Member for Cambridge mentioned this general point, and I do not know whether it undermines his ability to vote for his own amendment: he accepts that under the Bill we would be implementing simplification proposals and lightening the burden on business. The way that his sunset clause is drafted, with no savings provision, means that anything delivered by the 2005 Act would be lost. He referred to that—in a different manner, of course.

David Howarth: That is not my interpretation of the new clause, although what the Minister says is of course a possible interpretation. If he is now engaged in discussing drafting points, perhaps he will accept the point of the clause and come back to it on Report.

Jim Murphy: No. As I said, that is not the significant point that I wished to make; it is a matter of the way that it is drafted. If the hon. Gentleman wishes to, he may check that I said that. It was a specific point about the way that he drafted the new clause, and I wondered whether he was aware of it.
For example, clause 28(4) of the Bill is a savings provision respecting the 27 orders delivered under the 2001 Act. Those orders would be saved by virtue of clause 28(4), but in the absence of a similar savings provision in his new clause, any meaningful simplification plans delivered or burdens lightened—even those that the hon. Gentleman might support—would be lost as a consequence of his new clause.

Christopher Chope: The Minister has attacked my hon. Friend’s new clause, but can he address whether he believes as a matter of principle that sunsetting is a good way of restricting the burden of regulation?

Jim Murphy: I do not think that the comments that I made about the drafting of the new clause tabled by the hon. Member for North-East Hertfordshire could be misconstrued in any way as an attack. They were a gentle probe. The new clause is technically inefficient in its drafting. The Bill has a savings provision—

Christopher Chope: I think that the Minister has misunderstood my intervention. I wanted to find out whether the Minister believes in the principle that an effective way of reducing the burden of regulation is to ensure that any regulations that are made are subject to sunset clauses. Does the Minister agree that that is a useful proposition or not?

Jim Murphy: In general I do not. One of the things that we all hear from the business community and others about regulation is that common commencement dates for regulations are needed. We are moving on that, which is generally welcome. Hon. Members on both sides will find that small businesses in their constituencies welcome common commencement dates and we may wish to go further than that. But to have as a norm a sunset clause on simplification and better regulation proposals would create an enormous degree of uncertainty.
In the past we had situations where businesses quite rightly said that we had to seek legal advice about when proposals were coming into force and that has been dealt with in some part by common commencement dates. With automatic sunsetting clauses businesses would have to seek advice from accountants and others about the date on which those simplification and better regulation proposals are sunsetted.

Oliver Heald: But is it not the Cabinet Office that has asked Sir Roger Toulson and the Law Commission to engage in a consultation on post-legislative scrutiny, which includes ideas such as sunsetting and the like? Can the Minister really set his face against that, particularly when the consultation has only just started? There was an excellent seminar last week in which the Law Commission explained that it was  looking at those points and asking for evidence. It seems rather wrong just to cut off sunsetting as a principle in this way.

Jim Murphy: As I said in response to the hon. Member for Christchurch, in general I am not attracted to sunsetting clauses in the way he suggests. One area where a greater degree of post-legislative scrutiny is needed is regulatory impact assessments. I have no idea whether we are within the scope of the new clause, Sir Nicholas, but one of the things about regulatory impact assessment is that an assessment is made when a proposal is brought forward by Government identifying costs, benefits and likely impacts. My sense is that there is not often enough a retrospective analysis of whether those impact assessments were accurate, whether the expected benefits were delivered, the expected costs were accurately assessed and the predictions in the proposal, which partly in a sense justified the proposal, were accurate. There is in a general sense a great case to be made for much stronger and more consistent retrospective assessment of whether impact assessments were effective predictors of likely outcomes. We are trying to move to that across Government.
The hon. Member for North-East Hertfordshire spoke about a sunset clause being a necessary protection. I do not feel that that is the case. In addition to the points that I made about changing the culture across Whitehall, the Government assert that the preconditions within 3(2) and, without wishing to rehash the debate about necessary protections and continuing to exercise any right or freedoms, the need for statutory public consultation with those who would be affected—

Nicholas Winterton: Order. May I remind the Minister that we are dealing with clause 31, which is about the commencement date, and new clause 6 which relates to a sunset clause? He is going a little wide and unnecessarily so. Perhaps he can direct his remarks to clause 31 and new clause 6?

Jim Murphy: Of course I will obey your strictures, Sir Nicholas. The hon. Member for North-East Hertfordshire said that a sunset clause was a necessary safeguard. I am making the point that there are other safeguards and protections in the Bill and in our procedure. Not least among them is that under the 2001 Act there is a ministerial undertaking not to press ahead with proposals that the relevant Select Committees oppose. The additional protection that we have conceded in Committee is that we will have conversations with Conservative and Liberal Democrat Front Benchers—I think that it will be the week after next—about the specific shape of the principle of a veto. That is a substantial and significant additional protection that we are now committed to putting into the Bill as a consequence of points raised by hon. Members, particularly those opposite, and by  the relevant Select Committees. In our opinion, that and the other reasons given mean that the sunset clause is not necessary.

Question put and agreed to.
Clause 31 ordered to stand part of the Bill.

Nicholas Winterton: I feel that I should give notice to the Committee that the Opposition have indicated that they may wish to press new clause 6 to a Division, in which case I shall put the question only after we have disposed of new clause 2, which is also for Division only.

Clause 32 - Extent

Question proposed, That the clause stand part of the Bill.

David Heath: Will the Minister explain what legislation he has in mind that extends outside England and Wales, Scotland and Northern Ireland? Are we dealing with the British overseas territories or is there another interpretation? [Interruption.] As my hon. Friend the Member for Cambridge says, wider still and wider.

Jim Murphy: Of course the Government do not intend to legislate beyond their territorial integrity. If that is the hon. Gentleman’s reading of clause 32, we will seek to clarify the point before Report.

David Heath: He does not know, does he? No.

Question put and agreed to.

Clause 32 ordered to stand part of the Bill.

Clause 33 - Short title

Question proposed, That the clause stand part of the Bill.

David Howarth: We have reached the end of the Bill and the clause that describes its short title. Is the Minister still satisfied with the short title that is being offered in clause 33? Throughout the debate he has referred so many times to the Hampton review that he might perhaps be prepared to offer the Hampton review Bill in place of the present name. He has also referred so many times to firefighters’ pensions that perhaps that ought to form the title.
The Bill has a popular alternative short title, which I think should be attributed to Professor John Spencer; the abolition of Parliament Bill.

Nicholas Winterton: I am tempted to allow the hon. Gentleman to continue, but what he has said so far does not encourage me to do so. If anything had happened in Committee to lead us to believe that the short title needed to be changed, there would have had to be a substantial change to the Bill. I therefore do not believe that there are any grounds for suggesting that  the short title be amended. If the hon. Gentleman wishes to continue—but very briefly—then I shall show flexibility.

David Howarth: My point was almost the opposite of yours, Sir Nicholas. Since there had been no change to the Bill, I wondered whether the Minister would consider changing the title to the abolition of Parliament Bill, since that is still possible under the Bill.

Nicholas Winterton: The Minister has no comment to make. I therefore put the question.

Question put and agreed to.

Clause 33 ordered to stand part of the Bill.

Schedule agreed to.

New Clause 17 - Combination of powers

‘In Schedule 2 to the European Communities Act 1972 (c. 68), after paragraph 2 insert—
“2A(1)This paragraph applies where, pursuant to paragraph 2(2) above, a draft of a statutory instrument containing provision made in exercise of the power conferred by section 2(2) of this Act is laid before Parliament for approval by resolution of each House of Parliament and—
(a)the instrument also contains provision made in exercise of a power conferred by any other enactment; and
(b)apart from this paragraph, any of the conditions in sub-paragraph (2) below applies in relation to the instrument so far as containing that provision.
(2)The conditions referred to in sub-paragraph (1)(b) above are that—
(a)the instrument, so far as containing the provision referred to in sub-paragraph (1)(a) above, is by virtue of any enactment subject to annulment in pursuance of a resolution of either House of Parliament;
(b)in a case not falling within paragraph (a) above, the instrument so far as containing that provision is by virtue of any enactment required to be laid before Parliament after being made but is not required by virtue of any enactment to be approved by resolution of each House of Parliament in order to come into or remain in force;
(c)the instrument so far as containing that provision is not by virtue of any enactment required to be laid before Parliament after being made.
(3)Where this paragraph applies in relation to the draft of a statutory instrument—
(a)the instrument, so far as containing the provision referred to in sub-paragraph (1)(a) above, may not be made unless the draft is approved by a resolution of each House of Parliament;
(b)in a case where the condition in sub-paragraph (2)(a) above is satisfied, the instrument so far as containing that provision is not subject to annulment in pursuance of a resolution of either House of Parliament; and
(c)in a case where the condition in sub-paragraph (2)(b) above is satisfied, the instrument so far as containing that provision is not required to be laid before Parliament after being made.
(4)In this paragraph, references to an enactment are to an enactment passed or made before or after the coming into force of this paragraph.
2B(1)This paragraph applies where, pursuant to paragraph 2(2) above, a statutory instrument containing provision made in exercise of the power conferred by section 2(2) of this Act is laid before Parliament under section 5 of the Statutory Instruments Act 1946 (instruments subject to annulment) and—
(a)the instrument also contains provision made in exercise of a power conferred by any other enactment; and
(b)apart from this paragraph, either of the conditions in sub-paragraph (2) below applies in relation to the instrument so far as containing that provision.
(2)The conditions referred to in sub-paragraph (1)(b) above are that—
(a)the instrument so far as containing the provision referred to in sub-paragraph (1)(a) above is by virtue of any enactment required to be laid before Parliament after being made but—
(i)is not subject to annulment in pursuance of a resolution of either House of Parliament; and
(ii)is not by virtue of any enactment required to be approved by resolution of each House of Parliament in order to come into or remain in force;
(b)the instrument so far as containing that provision is not by virtue of any enactment required to be laid before Parliament after being made.
(3)Where this paragraph applies in relation to a statutory instrument, the instrument, so far as containing the provision referred to in sub-paragraph (1)(a) above, is subject to annulment in pursuance of a resolution of either House of Parliament.
(4)In this paragraph, references to an enactment are to an enactment passed or made before or after the coming into force of this paragraph.
2CParagraphs 2A and 2B above apply to a Scottish statutory instrument containing provision made in the exercise of the power conferred by section 2(2) of this Act (and a draft of any such instrument) as they apply to any other statutory instrument containing such provision (or, as the case may be, any draft of such an instrument), but subject to the following modifications—
(a)references to Parliament and to each or either House of Parliament are to be read as references to the Scottish Parliament;
(b)references to an enactment include an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament; and
(c)the reference in paragraph 2B(1) to section 5 of the Statutory Instruments Act 1946 is to be read as a reference to article 10(2) of the Scotland Act 1998 (Transitory and Transitional Provisions) (Statutory Instruments) Order 1999 (S.I. 1999/1096).”’.—[Mr. Murphy.]

Brought up, and read the First time.

Jim Murphy: I beg to move, That the clause be read a Second time.

Nicholas Winterton: With this it will be convenient to discuss new clause 18—Combination with powers under European Communities Act 1972.

Jim Murphy: As we come towards the end of our proceedings, I wish to talk to new clauses 17 and 18. They are technical, and I hope that members of the Committee found the note that I circulated last week to be helpful. I shall reiterate some of its points. Currently, it is not possible for a statutory instrument made under an enabling power in one Act to be combined with a statutory instrument made under an enabling power in another Act if parliamentary procedures require that the two Acts differ. However, it is possible for statutory instruments of same type, for example when both are orders or regulations, that are  made under different enabling powers and go through the same parliamentary procedure, to be combined into one instrument.
New clause 17 would enable provisions under section 2(2) of the European Communities Act 1972 and those under another Act to be contained in a single instrument when the provision under the Act is subject to a different procedure. Broadly put, the instrument as a whole will have to follow whichever procedure under either Act is the more onerous. Section 2(2) of the European Communities Act enables the use of either affirmative or negative resolution procedure when the appropriate procedure for an instrument made under the section was affirmative. The instrument could also include provision made under another power.
New clause 18 will similarly make it possible to combine statutory instruments made under section 2(2) of the European Communities Act with an order made under clause 1, provided that the order as a whole is subject to the procedure required under part 1 of the Bill. That will enable a single order to implement Community law—section 2(2) of the ECA—while also using clause 1 to remove pre-existing domestic statutory regulatory requirements that are no longer thought appropriate, as a result.
I reassure hon. Members that the purpose of new clause 17 is not to enable Ministers to make provisions and subordinate instruments that they could not already have made, but to reduce the number of instruments needed to make provisions that could already be made. I hope that I have been helpful in a technical sense. The amendment is minor. As I have illustrated, it is about simplification.

Oliver Heald: I have a question, but I shall have to set the scene to get to it because it concerns such a complicated provision. I understand that, under section 2(2) of the European Communities Act, Ministers can implement European Community instruments by regulations. Section 2(2) refers to powers exercisable by statutory instrument, either affirmative or negative.
New clause 17 inserts new paragraphs 2A, 2B and 2C. Paragraph 2A applies when the statutory instrument being used to implement an EC instrument is affirmative resolution procedure and when the statutory instrument also includes provisions made under powers granted under another Act. Irrespective of whether the powers under the second Act were exercisable by statutory instrument subject to affirmative or negative procedure, or by a statutory instrument that did not have to be laid before Parliament, the statutory instrument made under the powers of both Acts would be affirmative.

Jim Murphy: Was that it?

Oliver Heald: No. Under the hon. Gentleman’s proposed clause 2B, if the statutory instrument is subject to the negative resolution procedure, but also includes provisions from a different Act that are not subject to either affirmative or negative procedures, overall the procedure is negative. Section 2C deals with Scotland. The question, however, is why there are no  provisions for a statutory instrument that is used to implement an EC measure and which, while being subject to the negative procedure, also contains provisions under a second Act which are subject to either affirmative or negative procedures. All the other permutations are covered, but not that one, and I wondered why.

Jim Murphy: I wonder if the hon. Gentleman could offer to write to me with his question.

David Howarth: I have only one comment on the new clause. I asked an academic colleague what it meant, and his conclusion was that it is a rigmarole, but it does make some sense. I think I shall stop there.

Question put and agreed to.
Clause read a Second time, and added to the Bill.

New Clause 18 - Combination with powers under European Communities Act 1972

‘(1)The power to make an order under section 1 may be exercised together with, and by the same instrument as, the power to make an order under section 2(2) of the European Communities Act 1972 (c. 68).
(2)Where the powers referred to in subsection (1) are so exercised—
(a)sections 10(2) to 16 above apply to the order under section 2(2) of the European Communities Act 1972 as to the order under section 1; and
(b)paragraph 2(2) of Schedule 2 to the European Communities Act 1972 (c. 68) does not apply.’. —[Mr. Murphy.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 2 - RESERVED AREAS OF COMPETENCE

‘(1)Schedule [Reserved areas of competence] shall have effect.
(2)A Minister may not make an order under section 1 containing provisions relating to the reserved areas of competence as set out in Schedule [Reserved areas of competence].
(3)A Minister of the Crown may, subject to a resolution of both Houses of Parliament, amend by order the reserved areas of competence in Schedule [Reserved areas of competence].’.—[Mr. Murphy.]

Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time.

The Committee divided:  Ayes 6, Noes 9.

NOES

Question accordingly negatived.

New Clause 6 - Expiry

‘Part 1 of this Act shall cease to have effect at the end of the period of five years beginning with the day on which it is brought into force.’.—[Mr. Murphy.]

Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time:—

The Committee divided:  Ayes 6, Noes 9.

NOES

Question accordingly negatived.

New Clause 7 - Excepted Acts

‘(1)Schedule (Excepted Acts) shall have effect.
(2)Provision under section 2(1) may not amend this Act or any provision amending this Act or the Human Rights Act 1998 or any provision amending that Act, or any Act specified in Schedule (Excepted Acts) to this Act or to any provision amending those Acts.’.—[Mr. Murphy.]

Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time:—

The Committee divided:  Ayes 6, Noes 9.

NOES

Question accordingly negatived.

New Clause 8 - Judicial tenure

‘Provision under section 2(1) may not affect the appointment, terms of engagement, dismissal or tenure of any judge.’.—[Mr. Murphy.]

Brought up, and read the First time.
Motion made, and Question put, That the clause be read a Second time:—

The Committee divided:  Ayes 6, Noes 9.

NOES

Question accordingly negatived.

Question put, That the Chairman do report the Bill, as amended, to the House.

Oliver Heald: We have been as well guided by you, Sir Nicholas, and your brother Chairman, Mr. Caton, as we predicted that we would be. On behalf of those on the Opposition side of the Committee, thank you for all that you did to keep us in order and ensure that we behaved ourselves, although I do not think that we were too bad.
I also thank the Clerks, who have been extremely helpful with drafting and with the inquiries that the Opposition Members often have, so I thank Mr. Cranmer and Mr. Farrar for what they have done for us. I thank the Minister for the courteous way in which has dealt with matters. Although we would hope for more to come in terms of concessions, he has been helpful and offered us a meeting. I thank all the other members of the Committee for the way in which the Committee has been conducted, and I thank the Doorkeepers and the police. Finally, I hope that the Bill will go forward and be improved.

David Heath: I associate myself with the thanks that have already been offered by the hon. Member for North-East Hertfordshire to you, Sir Nicholas, and to Mr. Caton, for your chairmanship, and to the Officers of the House who have assisted us with the Committee.
We have had a very positive Committee in many ways. The arguments that have been adduced by the Opposition have been extremely cogent and well argued. I single out for thanks my hon. Friend the Member for Cambridge, who has done a very good job in presenting arguments that are very relevant to the Committee. I should also like in passing to note the contributions of the hon. Members for Plymouth, Devonport (Alison Seabeck) and for Edmonton, who were prepared to engage in debate on some of the issues. We had a degree of engagement from the Minister too. I am not entirely convinced that I have to thank him a great deal for the one concession on the veto, because it is what he thought was in the Bill originally when he appeared before the Committee. We are now back to where we were before the Committee started.
My hon. Friend the Member for Cambridge had some fun suggesting a name for the Bill. To me it is quite clear. It is the Parliamentary Scrutiny (Abolition or Avoidance) Bill. Part 1 will not do. It will not pass unless we have substantial amendments on Report. I am quite sure that my noble Friends and others will fillet the Bill unless the Minister has some substantial amendments to make on Report.

Jim Murphy: It is noticeable that we have finished, perhaps a little unpredictably, almost an hour early, which is testimony to the usual channels and the fact that we have a had a good debate on the different clauses without any knives. You were in the Chair at our first Programming Sub-Committee meeting, Sir Nicholas, and you were keen to ensure that we had no knives. Your guidance has been helpful because we have had ample opportunity to debate matters and there has been some good humour on occasion.
As the hon. Member for Somerton and Frome said, the Government have agreed to reflect on a number of areas including the commitment to a veto and nine of the amendments about the procedures recommended by the Regulatory Reform Committee. We have given a commitment to come back on Report with specifics on that. We will consult the Opposition Front Benches and others about the nature of that veto. I thank you, Sir Nicholas. In addition to your duties here you had duties at “Question Time”. I know that it may have been difficult that morning to keep your mind on the discussions in Committee when you were preparing for that engagement.
I thank the Bill team, who have been of great assistance, the Clerks, and the Officers of the House. I thank the hon. Member for Somerton and Frome for announcing his deputy leadership bid during our proceedings. While the hon. Member for Cambridge deserves the compliment, he should be wary about why it is offered; he has a vote. He could have adopted the same approach as his hon. Friend and refused to commit to anyone.
I see from my notes that the hon. Member for Cambridge married a Murphy.

David Howarth: That is right.

Jim Murphy: Although there was not a meeting of minds with this Murphy, I see from the notes that the hon. Gentleman conceded the constituency of Peterborough at a previous election. Until I read my notes this morning, I was not aware that the father of my hon. Friend the Member for Plymouth, Devonport was the Member of Parliament for Peterborough. I have no idea why I am saying that—perhaps for the sake of saying it.
We have 50 minutes left, and I have no intention of filling them. I thank everyone associated with ensuring that the Committee made good progress. I particularly thank Members on both sides, who have fulfilled their duty during our eight sittings.

Nicholas Winterton: May I have the last word? I thank the Committee for the quality of debate and for the good humour displayed throughout our eight sittings. I join those who have thanked the Officers of the House, the Clerks, the police, the Hansard writers and the Doorkeepers for ensuring that we had orderly debate at all times.
I take up the Minister’s remark by saying that we have shown what a Committee can do without knives if there is proper consultation about how the Bill should be handled in Committee. If that was followed by all members of Committees once the Programming Sub-Committee has met, knives would be used far less; and I believe that the quality of debate and the way in which the House deals with such important matters in Committee would be much more constructive. I have enjoyed it.
Finally, I thank my co-Chairman, Martin Caton, for the exemplary way in which he handled the duties with me of chairing a Committee considering such an important Bill. Before the Clerk intervenes to say that I have one further thing to do, I now put the question.

Question put and agreed to.

Bill, as amended, to be reported.
Committee rose at twelve minutes past Three o’clock.